Locations
Two recent UK cases, raised similar issues on appeal in terms of the approach adopted by the UK General Medical Council (“the GMC”), when the registrants did not engage with the GMC’s investigations.
In General Medical Council v Adeogba, the registrant was in Nigeria and was aware that he was the subject of a GMC investigation. The registrant decided not to respond to correspondence nor to attend or to participate in the hearing.
In General Medical Council v Visvardis the registrant engaged and challenged the disciplinary process and then refused to participate until his concerns had been addressed.
In both cases, different constituted Fitness to Practise Panels of the Medical Practitioners Tribunal Service heard and considered the available evidence in the absence of each registrant. Ultimately findings were made in respect of each registrant and they were removed from the medical register.
Both cases were independently appealed to the High Court and it was ordered that both Fitness to Practise Panels were wrong to proceed with their hearings in the absence of the registrants and that fresh hearings should be commenced. Both cases were appealed to the Court of Appeal and were joined as the grounds for appeal raised important matters of public interest.
Hearing these cases jointly, the Court of Appeal gave guidance on the approach to be taken by the Fitness to Practise Panel in proceeding where the registrant is absent.
This guidance considered Tait v The Royal College of Veterinary Surgeons where it established that a Fitness to Practise Panel’s discretion to proceed to hold such a hearing was “severely constrained” and a Panel should exercise this discretion with the upmost care and caution.
The criminal case of R v Jones (Anthony) was also considered where it established five factors that a Panel must consider when deciding to exercise their discretion to proceed with a hearing in the absence of a registrant. These are as follows:
- The nature and circumstance of the registrant’s behavior in absenting themselves from the hearing;
- Whether an adjournment would resolve the registrant’s absence;
- The likely length of any such adjournment;
- Whether the registrant has voluntarily absented themselves from the proceedings; and
- The disadvantage of the registrant in not being able to present their case.
In both cases, the Court of Appeal considered whether all reasonable steps had been taken to serve notice of the hearing, whether the registrants had been served with the Notice of Allegation in due time subsequent to referral to the Fitness to Practise Panels and the means by which service was effected.
With the main statutory objective of the GMC to protect, promote and to maintain the health and safety of the public the Court of Appeal noted that the fair, expeditious, economical and efficient disposal of allegations made against registrants is of undeniable importance. Where registrants deliberately fail to engage in the process, it would be counterproductive to the aim of the GMC to permit delays in the process of investigation.
It was highlighted that a registrant is responsible for engaging with their regulator. The GMC is under a duty to maintain accurate records including a registrant’s contact details. It is however the responsibility of the registrant to inform the GMC of any change to their contact details.
Jatta v Nursing and Midwifery Council was considered, where it was outlined that the starting position must be whether all reasonable efforts have been taken to serve the registrant with notice, this is balanced with the responsibility on the Registrant to provide up to date contact information to allow such service. When a Fitness to Practise Panel is satisfied with the service of notice, they must take into consideration all the facts of the case bearing in mind fairness to both parties.
Ultimately, the Court of Appeal was satisfied that all reasonable steps had been taken to serve notice on the registrants and allowed the GMC’s appeals by restoring the order of the Fitness to Practise Panels. Both matters have been remitted back to the High Court.
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Authors: James Roddy and Elaine Morrissey